Laughran v. Brewer

• Decision Date: 02 February 1897
• Citation: 113 Ala. 509,21 So. 415
• Parties: LAUGHRAN v. BREWER.
• Court: Alabama Supreme Court

21 So. 415

113 Ala. 509

LAUGHRAN v. BREWER.

Supreme Court of Alabama

February 2, 1897

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

This action was brought by the appellant, James L. Laughran against the appellee, William P. Brewer, to recover damages for personal injuries, alleged to have been caused by the negligence of the defendant or his employés. The complaint as originally filed contained four counts. The first count alleged that on November 2, 1893, the defendant was operating and running a manufacturing establishment for the making of paints; that said establishment had machinery of various kinds therein which was driven by steam engines through the medium of belts, shafting and pulleys; that the plaintiff was employed by the defendant to work in and superintend said paint shop; and, therefore, it was the duty of said defendant to have in his manufacturing establishment good and safe engines, shafting, belts, pulleys, machines, etc., and to have said machinery run with care; that on the day above mentioned, while the plaintiff was in said shop or mill engaged in the proper discharge of his duties for the defendant, his right hand and was caught in and between the belt and pulley, and was thereby so crushed, mangled and torn, that it was necessary to amputate it. The count then alleges that the cause of the accident was the negligence of the defendant, and the averments in reference to it are copied in the opinion. The prefatory averments of the other counts of the original complaint were in substance the same as the first; and the averments of negligence in each of the counts, which caused the injuries complained of, are copied in the opinion. The complaint was afterwards amended by adding the 5th, 6th, 7th, 8th, and 9th counts. The allegations of these counts, added by amendment as to the circumstances of the accident, are the same as those stated in the first count of the original complaint; and the averments of negligence as contained in these respective counts are copied in the opinion. The defendant demurred to each of the counts, both of the original and amended complaint, and assigned many grounds of demurrer, which may be summarized as follows: To the first count: (1) There are not facts alleged in said counts showing how the belts pulleys, shafting, machinery and appliances, which are averred to have been defective, out of order, unsafe, and unfit to be used in said business, caused plaintiff's arm and hand to be caught in between the belt and pulley. (2) The averments of said count are bad for generality, in failing to describe the machinery or appliances in said mill which were defective, and out of order. (3) It appears from said count that plaintiff was an employé of the defendant, and the matters alleged therein do not make such a case as makes the defendant liable for the injuries suffered by plaintiff. To the third count: (1) There are no facts alleged in said count which show how or in what way the defect alleged in the condition of the works, machinery or plant used in the business of the defendant caused the injury to plaintiff. (2) The count shows no fact from which it can be inferred that any defect existed in the condition of the works, machinery or plant of the defendant that caused the injury. To the fourth count: (1) There are no facts alleged in said count which show why or how the alleged failure or omission of the engineer caused the injuries complained of. (2) There are no facts alleged in said count which show that plaintiff was in such relationship to the defendant or to the defendant's engineer as would render the defendant liable to plaintiff for any injury received by plaintiff on account of the failure or omission of said engineer to obey the rules and regulations of the defendant made to regulate the starting and stopping of the engines. The grounds of demurrer to the fifth count were the same as those assigned to the first count. The grounds of demurrer to the sixth count were the same as those assigned to the third count, and the demurrers to the seventh, eighth, and ninth counts of the complaint were the same as those assigned to the fourth count. There were also demurrers assigned to the second count, but as these were overruled, and there is no question in reference to this ruling presented on the present appeal, it is deemed unnecessary to set out the second count or the demurrers interposed thereto. The demurrers to the first, third, and fourth counts of the original complaint were sustained, and upon the amendment by the addition of the other counts, the demurrers to the fifth and sixth counts of the amended complaint were overruled, and the demurrers to the seventh eighth, and ninth counts were sustained. The trial was had upon issue joined upon pleas which were interposed, and there was judgment for the defendant. The plaintiff appeals, and assigns as error the several rulings of the trial court upon the pleadings. Affirmed.

Sam Will John, for appellant.

J. M. Gillespy and E. K. Campbell, for appellee.

HARALSON J.

1. The first count is one for simple negligence under the common law. When construed by the rules for pleading under that system, this count is entirely too general and lacking in averments of facts upon which an issue could be taken. But that rule has been greatly relaxed under our code system of pleading, in cases where the cause of action consists in the nonperformance or misperformance of a duty. In such cases the rule as now obtaining is: "When the gravamen of the action is the alleged nonfeasance or misfeasance of another, as a general rule, it is sufficient if the complaint avers facts out of which the duty to act springs, and that the defendant negligently failed to do and perform, etc.; not necessary to define the quo modo, or to specify the particular acts of diligence he should have employed in the performance of such duty." Railway Co. v. Chewning, 93 Ala. 26, 9 So. 458; Railroad Co. v. George, 94 Ala. 214, 10 So. 145; Railway Co. v. Chambliss, 97 Ala. 171, 11 So. 897. Again it has been said, and may be regarded as the settled rule in this court, "that under our system of pleading, very general averments, little short, indeed, of mere conclusions, of a want of care and consequent injury, leaving out the facts which constitute and go to prove negligence, meet all requirements of the law." Railway Co. v. Davis, 92 Ala. 307, 9 So. 252, and authorities there cited; Stanton v. Railroad Co., 91 Ala. 384, 8 So. 798; Thomas v. Railroad Co., 42 Ala. 673. In the first count, it is averred among other things, that the right hand of plaintiff "was caught in between a belt and pulley and his right hand was thereby crushed; *** and that the hand and arm of the plaintiff was caught in said belt or between the same, and said wrongs or injuries were suffered, because of the wrong or negligence of the defendant in having and running in said mill in said business, belts, pulleys and shafting, machines and appliances which were defective, out of order and unsafe, and unfit to be in said business, and which, but for the want of proper care and diligence would have been known to defendant, and all of which was unknown to plaintiff," etc. The gravamen of this count evidently is, the alleged defects in the belts and pulleys, and their unsafe condition. Under our rulings, we apprehend this count was good, and the demurrer to it should have been overruled. The count was amended, however, by filing an additional one as count 5, which is the same in its recitals as the first, but in which it is averred in...